Pirates: Catch-and-Release?

NATO foiled two attacks by the Somali pirates over the weekend, warding off an attack on a Norwegian tanker and rescuing 20 Yemeni fishermen. As I note in “NATO Foils Pirate Attacks,” this is good news, indeed, for the beleaguered Alliance.

There is, however, a comic twist.  In both cases, the Canadian and Dutch warships were able to detain the pirates briefly before setting them free.  It seems that there are no provisions in their national law for dealing with pirates outside their territorial waters (in which case, technically, they’re not even pirates).

It seems that international law is incredibly murky on the issue of piracy.  Like terrorists, pirates exist in a netherworld between combatants and criminals.  Sending them to their home country for trial doesn’t work for a variety of reasons and it’s doubtful whether the capturing countries have jurisdiction.  And there are always “human rights” charges to worry about.

It’s a truly bizarre situation that needs fixing.

UPDATE:   Dave Schuler noted in a post yesterday afternoon that,

This story underscores the thought behind the suggestion that Galrahn of Information Dissemination made on OTB Radio last week. His suggestion was that the United States would agree to underwrite the insurance of American-flagged vessels carrying cargo off the coast of Somalia. This would encourage more vessels to be American-flagged (there are fewer than 250 American-flagged vessels of over 1,000 tons today). Vessels being American-flagged would give the United States a legal underpinning for apprehending and detaining Somali pirates who attacked or harassed such vessels.

FILED UNDER: Law and the Courts, World Politics, , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Boyd says:

    Doesn’t seem very comical to me.

    Being a (retired) US Navy sailor, I suppose I’m sufficiently bloodthirsty to wish that, absent some national law to deal with pirates in international waters, they’d just follow our lead and remove them from the cess gene pool.

    But I’m a barbarian, what do I know?

  2. Dave Schuler says:

    You may have missed my post here yesterday on this subject, James.

  3. mpw280 says:

    Maybe thats why in the old days pirates were hung from the nearest yardarm, that being the capturing ship usually. Summary judgment and execution is still a viable manner for handling pirates. mpw

  4. Idiot says:

    It amazes me how our laws protect the bad guys and punish and constrain the victims. The pirates must be laughing.

    I seem to recall reading somewhere that the British were reluctant to capture and try because then the pirates would at some point be eligible for welfare benefits in the U.K. I hope that isn’t actually true.

  5. PD Shaw says:

    My understanding of the issue is that the pirate attacks are occurring in Somalia territorial waters — 12 miles from the coast. In the sense of American and international law, this is Somalia’s jurisdiction to police piracy.

    This concept applied to a “state” without the capability of policing pirates is ludicrous. And the United States, which has launched rockets into the “state,” cannot be seriously arguing that the situation is normal, other than SNAFU.

  6. Johnny Potatoe says:

    It amazes me how our laws protect the bad guys and punish and constrain the victims. The pirates must be laughing.
    —————————————-
    There are two sets of villians:

    1. The pirates aka the irate-pirates.

    2. The fishing vessels that spark the ire of the irate-pirates. Forget international law. There’s too much fishing, way too much.

  7. James Joyner says:

    My understanding of the issue is that the pirate attacks are occurring in Somalia territorial waters — 12 miles from the coast.

    There may be some of that. Many if not most of them are occurring well outside that range — often hundreds of knots outside.

  8. Bithead says:

    And once again we see the result of over reliance on law and government. While ships are being hijacked and people are dying, we’re back on shore dancing over the legal definition of what is and is not a pirate.

  9. PD Shaw says:

    Many if not most of them are occurring well outside that range — often hundreds of knots outside.

    I stand corrected. I don’t understand why the U.S. would have a legal problem with seizing, trying or shooting pirates on the high seas. Perhaps as a practical matter, individual pirates may not appear to be enough of a threat to American interests to justify shipping them to a port for a military trial and possibly longterm imprisonment.

    The Europeans? They always seem to need some pre-existing postive law and regime to do anything any more.

  10. Tlaloc says:

    It amazes me how our laws protect the bad guys and punish and constrain the victims.

    *shakes head*

    Some people just don’t get the concept of due process. I guess it’s time for a refresher-

    Laws like this aren’t there to protect “the bad guys” they are there to protect *everyone*. See when you accept a situation in which you give wide latitude to people to enact personal vengeance justice you are going to get what is called “a cluster &^%$.” Civilization is pretty much defined as not giving people a right to kill other people with no overview or constraints.

    I sense you need a concrete example. You apparently support a ship’s crew, any ship’s crew, being able to kill “pirates” at will. But you have no system to make sure the people being killed are in fact guilty of anything, merely the word of those who, you know, hung or shot them.

    So what happens when a Greek boat attacks a Turkish boat and claims the Turks were pirates, which Ankara hotly deny? Well that’s when you get what we call “a war.” Or at the very least a lot of bad blood with potentially escalating attacks on each country’s ships.

    There’s a very very good reason to have constraints on punishment- to make sure it applied evenly and fairly with ample review to correct for mistakes and attempts to game the system.

  11. Bithead says:

    Some people just don’t get the concept of due process.

    Oh, I think they understand quite well what it suppsoedly is intended to do.

    They also know, however, what it does in reality, all too often… and in turn, then, the danger that imposes on us all, in cases such as terrorism.

    ut you have no system to make sure the people being killed are in fact guilty of anything, merely the word of those who, you know, hung or shot them.

    Here’s a clue: If they’re shooting at you…

  12. Tlaloc says:

    Here’s a clue: If they’re shooting at you…

    Right, and when you show up after the fact and the guys claim they were shot at, what do you do? Nothing. So guess what you just created a new cottage industry of piracy where you scream “they’re coming right at us” before killing the people and taking their boat, and its all nice and legal because there’s no system of review or laws against it.

    Thank you so much.

  13. anjin-san says:

    over reliance on law

    At least skippy is being honest about his true feelings regarding the rule of law.

  14. marc says:

    Lt. Cmdr. Alexandre Fernandes of NATO said “NATO does not have a detainment policy.”

    Mind if I raise the BS Flag? NATO is in the area under a UN directive.

    Well then I’d suggest Lt. Cmdr. Fernandes read Article 105, “Seizure of a pirate ship or aircraft” of the UN Convention on the Law of the Sea that reads as:

    On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. The courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith.

    Damn sure looks like a legal basis for arrest to me.

    But what the hell do I know.

  15. Dave Schuler says:

    marc, I suspect that Lt. Cmdr. Fernandes is adhering rigorously to the fiction that the area where the pirates were apprehended was within the jurisdiction of the Somalia and, consequently, the Convention on the LOTS didn’t apply.

    It’s rather reminiscent of one of those newspaper cartoons, “How many things can you find wrong with this picture?”. Somalia is a state in name only (at best) and doesn’t have the capacity to apprehend pirates even within its supposed jurisdiction.

  16. davod says:

    I agree with Marc. To much equivocating not enough action.

    It looks like a cop out by NATO and the nations involved. Why invent NATO Rules when there are perfectly adequate international rules available.

    I quoted from Proceedings the other day but here is part of what Commander James Kraska, JAGC, U.S. Navy, and Captain Brian Wilson, JAGC, U.S. Navy wrote about the right to capture and detain pirates and their vessels:

    “The UNCLOS, the UN Charter, and more broadly, customary international law, provide authority that may be invoked for seizing a pirate ship, boarding a ship on the high seas, conducting hot pursuit, and taking action in furtherance of the inherent right of individual and collective self-defense. On the high seas or in any other place outside the jurisdiction of a state, any nation may seize a pirated ship, arrest the pirates, and seize the property on board and submit the matter to its civil and criminal courts. Only warships and military aircraft or vessels in government service, however, may exercise this authority.”

    WRT to the 12 mile limit. The same article notes that UN Resolution 1816 authorizes anti-piracy operations inside the 12 mile limit.

    “which was decided under Chapter VII of the UN Charter and therefore legally binding on all states, called on them to cooperate in counter piracy actions off the coast of Somalia. The resolution authorizes operations inside Somalia’s territorial waters to deny that area as a safe haven for pirates who operate outside the 12-mile limit. It also provides for disposition and logistics of persons-under-control detained as a result of counter piracy operations.”

  17. PD Shaw says:

    I recommend Professor Kenneth Anderson’s sometimes contentious piece about law and piracy (link below), but this is the part that seizes my attention, which is actually quoted from Professor Kontorovich:

    The Article’s principle contention is that many of the difficulties in dealing with pirates are exactly the same ones presented by terrorists and Guantánamo detainees. If anything prosecuting pirates should be easier because they have no obvious political constituency. Thus, the piracy fiasco has cautionary implications for the idea that terrorists can easily be dealt with through regular civilian law enforcement mechanisms. Also attached is a piece in the forthcoming American Journal of international law about the first universal jurisdiction piracy case decided by America in hundreds of years, decided by the Ninth Circuit last year. The little noticed case also demonstrates the difficulties involved — the entire crew had to be detained on material witness warrants, translators found for everybody, etc.

    LINK

  18. Boyd says:

    Many if not most of them are occurring well outside that range — often hundreds of knots outside.

    Anal retentive editing note: a “nautical mile” is a measure of distance. A “knot” is a measure of speed (nautical miles per hour).

  19. James Joyner says:

    a “nautical mile” is a measure of distance. A “knot” is a measure of speed (nautical miles per hour).

    That’s right!

  20. Bithead says:

    Right, and when you show up after the fact and the guys claim they were shot at, what do you do?

    Ignore the claim. We’re in a war, after all.

    At least skippy is being honest about his true feelings regarding the rule of law.

    Ya know, Anjin, it’d be helpful for your image if just once, the people you leap up to defned against America, invoking the ‘ruule of law’ actually gave a crap about our laws and the culture therein… and weren’t about destroying it.

  21. Bithead says:

    marc, I suspect that Lt. Cmdr. Fernandes is adhering rigorously to the fiction that the area where the pirates were apprehended was within the jurisdiction of the Somalia and, consequently, the Convention on the LOTS didn’t apply.

    It’s rather reminiscent of one of those newspaper cartoons, “How many things can you find wrong with this picture?”. Somalia is a state in name only (at best) and doesn’t have the capacity to apprehend pirates even within its supposed jurisdiction.

    @Anjin; Re-read this comment by Dave, and tell me again about the rule of law.

  22. Grewgills says:

    Right, and when you show up after the fact and the guys claim they were shot at, what do you do?

    Ignore the claim. We’re in a war, after all.

    Two things.
    1) That particular claim would not be coming from the pirates (alleged), so I will assume that in order to remain consistent you meant the statement should be taken as gospel.
    2) So we are now in a war with Somali pirates and we should be able to kill Somali fishermen willy nilly and if they don’t to be shot they shouldn’t fish where there might be pirates?

    Ya know, Anjin, it’d be helpful for your image if just once, the people you leap up to defned against America, invoking the ‘ruule of law’ actually gave a crap about our laws and the culture therein… and weren’t about destroying it.

    Because, as an extension of Bit’s rules for terrorists, all accused pirates are actual pirates and out to destroy America and so should be executed and/or tortured.
    Remember, the fishermen by virtue of their presence in the same area as pirates are also pirates and should be treated as such. This obviates the need to point out that no one who mistakenly killed a fisherman would claim that fisherman was a pirate.

  23. Bithead says:

    1) That particular claim would not be coming from the pirates (alleged), so I will assume that in order to remain consistent you meant the statement should be taken as gospel.
    2) So we are now in a war with Somali pirates and we should be able to kill Somali fishermen willy nilly and if they don’t to be shot they shouldn’t fish where there might be pirates?

    In your desperate efforts to legitimize the pirates, (Or is it more correctly regarded as an effort to de-legitimize the US?) you seem to be leaving logical thinking further and further behind. Not to mention what’s actually been said.

    Remember, the fishermen by virtue of their presence in the same area as pirates are also pirates and should be treated as such.

    And at what point did I actually say that, pray? Did I say “By virtue of their being there’, or ‘by virtue of their shooting at us’?

  24. anjin-san says:

    Its not complicated bit. I hold America to a higher standard than I do a pirate. You are happy to descend to their level. ‘neff said….

  25. Grewgills says:

    1) That particular claim would not be coming from the pirates (alleged), so I will assume that in order to remain consistent you meant the statement should be taken as gospel.
    2) So we are now in a war with Somali pirates and we should be able to kill Somali fishermen willy nilly and if they don’t to be shot they shouldn’t fish where there might be pirates?

    In your desperate efforts to legitimize the pirates, (Or is it more correctly regarded as an effort to de-legitimize the US?)

    Let’s separate out the two.
    Number one merely pointed out your misreading of the original.
    Number two points out the consequences of your proposed course of action.
    We do and should continue hold ourselves and our nation to a higher standard than pirates, terrorists, or other bad actors. Your proposed course of action on these and apparently all fronts is to descend to the level of the worst actor involved (at least until some undefined future conflict free time).

    Did I say “By virtue of their being there’

    Very much like your ‘I predict’ gambit. Require a specific formulation and attempt to deflect because you did not use that exact formulation.
    You advocate ignoring rule of law and abandoning any legal oversight, the result of this is no consequences for killing the wrong people and more innocents dead.

    Willy nilly is of course hyperbole. What you write I fear is not intended as such.